Opinion  EC-COI-86-20

Date:	09/15/1986
Organization:	State Ethics Commission

An employee of the Executive Office of Elder Affairs may serve on the board of a non-profit organization that receives EOEA funding subject to the restrictions set forth in §§ 4 and 6 of the conflict of interest law.

Facts

You are an employee of the Executive Office of Elder Affairs (EOEA), a state agency responsible for planning, developing and implementing elderly housing programs. The EOEA budget for the current fiscal year includes an appropriation authorizing EOEA to contract with a non-profit organization (NPO) to conduct public education, advocacy, research and evaluation of elder equity conversion activities. St. 1986 c. 206, § 2 Item 9110-1665. Among the budgetary conditions for the authorization is that the board of directors of the NPO consist of representatives from the Executive Offices of Consumer Affairs, Community Development and EOEA.^[1]

Question

Assuming that an EOEA employee is designated to the board of directors of the NPO, what restrictions does G.L. c. 268A place on the employee?^[2]

Answer

The employee may serve on the NPO board of directors, subject to certain limitations.

Discussion

1. Section 4(c)

Under this section, a state employee may not act as the agent of the NPO in relation to any contract, application or other particular matter^[3] in which the commonwealth or a state agency is a party or has a direct and substantial interest. For example, the designated employee could not appear on behalf of the NPO in support of the NPO's funding application to EOEA. On the other hand, the employee could participate as a board member in general policy discussions concerning the implementation of the promotion, counselling and educational functions of the NPO. Compare, EC-COI-83-145; In the Matter of James Collins, 1985 Ethics Commission 228.

2. Section 6

This section places limitations on the official EOEA activities of the employee designated to serve on the NPO board. Under § 6, an EOEA employee may not participate in any official capacity in any contract, determination or other particular matter in which the NPO has a financial interest. While an exemption from § 6 is available from the employee's appointing official, specific notifications and disclosures must be made as a condition to granting any such exemption. See, G.L. c. 268A, § 6 (paragraph 2). Absent the granting of an exemption, the employee must abstain from participating as an EOEA employee from any matter in which the NPO has a financial interest.


End Of Decision

[1] Item 9110-1665 provides that the "non-profit shall conduct public education, advocacy, research and evaluation of older equity conversion activities; provided that a board of directors shall consist of at least four representatives of banks actively financing older home equity conversion instruments, five representatives of nonprofit agencies geographically distributed throughout the commonwealth, representatives from the executive officer of elder affairs, consumer affairs, and community development, and no representatives of the consumer population; provided, further, that not less than ninety thousand dollars shall  be obligated for the payment of elderly home equity conversion counselors with nonprofit organizations which currently participate in home equity conversion activities or will do so in the future."

[2] Nothing in G.L. c. 268A would preclude the appointment of an EOEA representative or employee to the board of directors of the NPO. Such an appointment would be consistent with the conditions of item 9110-1665 and would not amount to the granting of an unwarranted privilege or appear to otherwise violate § 23.

[3] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding, enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.